Citation Nr: 18160272 Decision Date: 12/28/18 Archive Date: 12/26/18 DOCKET NO. 16-02 113 DATE: December 28, 2018 REMANDED The claim of entitlement to service-connection for the cause of the Veteran’s death is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1966 to August 1969. He died in March 2011. The appellant is his surviving spouse. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2012 rating decision in which the VA Regional Office (RO) in Milwaukee, Wisconsin, denied service connection for the cause of the Veteran’s death. The appellant filed a notice of disagreement (NOD) in September 2012. The RO issued a statement of the case (SOC) in November 2015 and the appellant filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) later that month. The Board’s review of the claims file reveals that additional agency of original jurisdiction (AOJ) action in this appeal is required. Initially, the Board points out that the appellate scheme set forth in 38 U.S.C. § 7104(a) contemplates that all evidence will first be reviewed at the AOJ so as not to deprive the claimant of an opportunity to prevail with his claim at that level. Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a supplemental statement of the case reviewing that evidence. See 38 C.F.R. § 19.31(b)(1). When evidence is received prior to the transfer of a case to the Board, a supplemental statement of the case (SSOC) must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue(s) on appeal. See 38 C.F.R. § 19.37(a). There is no legal authority for a claimant to waive, or the AOJ to suspend, this requirement. After the issuance of the November 2015 SOC, but before the appeal was certified to the Board, the AOJ obtained a medical opinion from a VA psychologist in December 2015, addressing whether the Veteran’s service-connected posttraumatic stress disorder or the medications used to treat that disability caused or substantially contributed to the Veteran’s death. As the evidence is relevant to the claim on appeal and the November 2015 SOC reflects the AOJ’s last adjudication of the claim, under these circumstances, the Board has no alternative but to remand these matters on appeal for AOJ consideration of the additional evidence received, in the first instance, and for issuance of an SSOC reflecting such consideration. See 38 C.F.R. §§ 19.31, 19.37. The Board also finds that further development of the claim is necessary. In the December 2015 opinion, the VA psychologist offered an opinion as to whether the Veteran’s service-connected PTSD caused or contributed to the Veteran’s death. However, as regards the impact of any medication to treat the service-connected disability, the psychologist stated that “I cannot comment on the contribution of the medication.” As the examiner was unable to offer an opinion as to the impact, if any, of the medication used to treat PTSD on his death, the Board finds that an opinion addressing such is necessary. Under these circumstances, the Board finds that a remand of this matter to obtain further medical opinions as to the impact of the PTSD medication—based n full consideration of all pertinent evidence of record, and supported by complete, clearly stated rationale—is warranted. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Prior to undertaking action responsive to the above, to ensure that all due process requirements are met, and that the record is complete, the AOJ should also give the appellant another opportunity to provide additional information and/or evidence pertinent to the claim on appeal, explaining that she has a full one-year period for response. See 38 U.S.C. § 5103(b)(1); but see also 38 U.S.C § 5103(b)(3) (clarifying that VA may decide a claim before the expiration of the one-year notice period). Thereafter, the AOJ should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.156. However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted prior to adjudicating the claim on appeal. The matter is hereby REMANDED for the following action: 1. Furnish to the appellant and her representative a letter requesting that the she provide information concerning, and, if necessary, authorization to enable VA to obtain, any additional evidence pertinent to the claim on appeal that is not currently of record. Clearly explain to the appellant that she has a full one-year period to respond (although VA may decide the matter within the one-year period). 2. If the appellant responds, obtain all identified records, following the procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the file. If any records sought are not obtained, notify the appellant and her representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange to obtain from a physician other than the author of the December 2015 VA medical opinion an addendum addressing the impact of any medications used to treat service-connected PTSD. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the addendum opinion/examination report should include discussion of the Veteran’s documented history and lay assertions. The examiner is requested to provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that medication used to treat service-connected PTSD contributed materially or substantially to cause the Veteran’s death. The physician is advised that the lay persons are competent to report matters within his personal knowledge, to include symptoms and events), and that the Veteran’s and the appellants lay assertions in this regard must be considered in formulating the requested opinion. If lay assertions in any regard are discounted, the physician should clearly so state, and explain why. Complete, clearly-stated rationale for the conclusions reached must be provided. 4. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate claim on appeal considering all pertinent evidence (to include all evidence added to the electronic claims file since the last adjudication, including the December 2015 VA medical opinion) and legal authority. JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Sanford, Counsel